Libby v. Dalton

9 Nev. 23

• Court: Nevada Supreme Court
• Decided: July 15, 1873
• Status: Published

Opinions

By the Court,

Belknap, J.:

The defendant was granted a new trial upon the ground of insufficiency of the evidence to justify the verdict. The statement fails to show that it contains all of the evidence. Orders denying motions for new trials made upon'statements failing to expressly show that all of the evidence was before the court have been uniformly affirmed. Such rulings are based upon the presumption that all intendments being in favor of the verdict the omitted evidence would sustain it. It is not the intention of the law that the question of insufficiency of evidence shall be entrusted to the memory of the district judge, but to the statutory statement exemplifying the grounds upon which the motion is made. The statement used upon motion for new trial is brought here, and both courts stand upon the same plane in reviewing the evidence. But granting or denying a motion for a new trial rests in the sound discretion of the nisi prim court and its ruling will not be disturbed where there is any evidence to sustain it. This discretion springs from the opportunity of the district judge to observe the demeanor of the witnesses and to estimate the relative weight to be attached to conflicting testimony.

A new trial should not have been granted unless the statement contains all of the evidence, and we are asked to so assume since all presumptions are in favor of the order of the district court. The supreme court of California, to whose opinions we are referred, has adopted this rule, but not upon such reasoning. It proceeds upon the presumption that unless tbe contrary appears tbe statement does contain all of the evidence. But under a rule of practice long established and repeatedly sanctioned we have held that unless the statement affirmatively appears to contain all, we should assume the existence of other evidence. We must adhere to this rule; its disturbance now, even though it originated in error, would be unwise and tend to confusion.

The order of the district court granting a new trial is reversed.